Part 7. Reapportionment (1): In Search of The Silver Bullet.
You can’t mix apples and oranges.
If you’re like me, you were 11 years old when you first heard that saying.
Maybe it was the brazen absoluteness of it, I don’t know, but the time-honored maxim struck me as an off-key note.
Flat, sharp … Of course, no note is wrong per se. It is off-key only in terms of the key of the song being played. Key = context. If the song were in another key, that same note would be perfectly fine.
But it wasn’t. At the time, I had no idea which particular context or key made the apples/oranges maxim sound so wrong.
30 years later, I found it. Or rather, it found me.
The purpose of The Second American Revolution is to resurrect a new and better polity, i.e., the oligarchy/democracy hybrid moderated by a large, healthy middle class.
A polity governed America for over 200 years; it was the envy of the world. Paraphrasing Winston Churchill, if you think a polity is bad -- especially because it permits an oligarchy to exist alongside a democracy -- you should try the alternative. In fact, that is what Americans are doing right now.
The Second American Revolution’s strategy: (1) politically weaken the oligarchy that overtly seized control of America in 2008-9, and (2) revive and strengthen the polity’s democracy component.
In the resurrection of democracy, The Second American Revolution cannot ignore electoral reapportionment. Here’s why:
The 14th amendment (1868) to the Constitution provides for equal protection under the law. Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That wording made a dead letter of the Supreme Court’s infamous Dred Scott decision (1857) that Blacks were not citizens,[i] and therefore could not enjoy the rights and protections of citizens.
The 14th amendment was also a response to the notorious Black Codes. The 13th amendment (1865) had abolished slavery. Nevertheless, certain states passed laws designed to keep Blacks in a condition of servitude, e.g., they were forced to enter labor contracts, did not have freedom of movement, and could not sue in court.
If trashing despotic court rulings and tyrannical laws is not democratic, what is?
The 14th amendment was later used by the Supreme Court to seek equal rights for other groups, notably women and Hispanics. The Court also applied the equal protection clause to reapportionment so as to provide for equal weight of votes. More on that subject shortly.
Racism is the crack in the diamond of America. Like an anti-virus computer program that has been infected by a virus, racism has infested conventional solutions to racism. The upshot: those solutions propagate the very racism they are supposed to heal.
There is no better example of the-problem-is-in-the-solution than the Supreme Court’s repeated efforts to destroy racism in the name of the 14th amendment. Let’s look again at what the amendment says: “… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Note that the amendment uses the word person not once but twice. There’s the rub. Sorry, Your Honors: Blacks are not a person. Women are not a person, nor are Hispanics. I know that from the perspective of your stretch limos and lace-curtained palaces in the D.C. suburbs, all Blacks look alike -- that as a group they are one and the same guy, a stupid one at that who is incapable to taking care of himself and constantly needs your divine intervention. You are absolutely convinced in your heart of hearts that the guy goes to bed every night, gazes heavenward in the dark and prays the same prayer not to some unknown god but to you, the Supreme Court: You must help me save me from myself.
A nonracist approach, anyone? Try considering a man or woman with a grievance as an individual living at X address. As a real live person -- not as a member of any group other than citizen -- that individual is entitled to equal protection. That is what the 14th amendment says. Of course, Your Honors, Dred Scott showed your hand; you cannot see a Black person as an individual. I suspect you would like to, but you can’t. Such is your problem.[ii]
Barnstorming misapplications of the 14th amendment in no way mean that equal protection per se should be tossed out. As written in the hearts of the people, i.e., a feeling of fairness and justice and support for the underdog, the 14th amendment is virus-free.
It is true that equal protection does not exist anywhere. The reason: it is a basic component of democracy. Equal protection is, like democracy itself, forever a work in progress. We can never arrive “there,” any more than we can arrive at a north or a west. Equal protection is a ruler by which all governments, policies, and politicians can and should be measured. The Second American Revolution, too.
At bottom, equal legal protection is a hollow shell unless people’s votes have the same weight. The moment that vote inequality is tolerated, a slippery slope begins. As with equal protection, equal weight of votes is a basic contribution by America to democracy.
Equality of votes is incarnated in the principle, “One Person, One Vote.” As we shall see, that principle is as crucial as it is misunderstood.
One Person, One Vote has never been, but that does not mean it will never be. Until it exists, equal protection is often a myth, usually a lie.
* * *
If you are very quiet, you will hear knives coming out.
The 2010 census is finished. Reapportionment wars and lawsuits are just around the corner. Expensive -- hideously expensive -- lawsuits. Throughout America, lawyers in hair suits are making frenetic phone calls, holding hectic Monday morning strategy sessions, rounding up plaintiffs, corralling expert witnesses.
Economic catastrophe is staring America in the face. No catastrophe has ever blinked. Is there a way your tax money can be saved for something other than reapportionment wars? Public education? Infrastructure? Social services? Law enforcement? Debt service? Environmental protection? Health care? Energy conservation?
There are two ways to slam the stoppers to reapportionment lawsuits:
(i) Abolish the house of representatives -- particularly those in state legislatures[iii] -- and change to a unicameral legislature consisting of a senate (see Part 6, this series). Tragically, the 2008-2009 change of political systems makes a unicameral system impossible. The oligarchs in charge will never permit that change; the continued existence of a house and senate is vital for preserving The Great American Illusion that America has a democracy. More on the Illusion in a future post.
(ii) Find the silver bullet for One Person, One Vote reapportionment under existing circumstances. Such a bullet has never been discovered because, as we shall see, it requires refuting the age-old maxim that you can’t mix apples and oranges.
Because (i) is not a real option, we will proceed with (ii).
The crux of reapportionment lawsuits lies in the famous -- or infamous -- “One Person, One Vote” principle. Politicians, lawyers, and judges simultaneously curse and revere it. In my experience as an expert witness in reapportionment lawsuits, only one federal judge in America understands it.[iv]
The principle means equality among individuals in their right to vote -- “that every voter is equal to every other voter in his State when he casts his ballot…” (Supreme Court, Gray v. Sanders, 1963). Equal rights are unconstitutionally impaired when the weight of a vote “is in a substantial fashion diluted when compared with votes of citizens living in other parts of the state.” (Reynolds v. Sims, 1964).
“One Person, One Vote,” then, has as a basic reference point the relationship among districts -- not relationships inside a district. That distinction instantly clears up a lot of confusion. Election trickery aside, if you and I vote in the same district, our votes always have the same weight. 1 = 1; they count equally. The One Person, One Vote principle does not come into question because it is fully realized. Such is the case in presidential and senate elections because, in both cases, the district in question is the entire state.[v]
But what happens when the weight of your vote is compared to the weight of a vote cast in another district in your state? The question most frequently arises when districts of state house representatives are compared.
As you will witness in the coming months, tempers flare in a Pavlovian involuntary reflex when reapportionment appears. To avoid as many unnecessary bad feelings as possible, I am going to take a concrete case from long ago to illustrate why One Person, One Vote has not been realized anywhere in America.
In 1982, a panel of three federal judges tossed out the state house reapportionment plan passed by the New Mexico State Legislature. Some of the 70 house district population totals varied too greatly, the judges ruled, creating a “constitutionally impermissible” result violating the One Person, One Vote principle.
The judges’ remedy was simple, direct. “The Legislature,” they commanded, had “to construct the legislative districts as nearly of equal population as is practicable.”
What literally counted for the judges, then, was one thing only: warm bodies. For reapportionment purposes that meant:
(1) Divide New Mexico’s population (1,302,894) by the number of house districts (70), and you have the population of the ideal house district: 18,613.
(2) When you reapportion, the judges ruled, keep all house district populations as close as practical to that number, and the One Person, One Vote principle will be realized.
The New Mexico legislature reapportioned -- guess who paid the tab -- rigorously following the three judges’ command.
Was the One Person, One Vote principle realized? Were the weights of votes cast thereafter roughly equal in house district elections? The truth was just around the corner -- the first election.
Here’s what happened:
In 1984, 8,723 people voted in the state representative’s race in House District 30 in Bernalillo country (John McMullan, GOP, incumbent). Only 3,776 people voted in the state representative’s race in House District 33 in Dona Ana County (Ralph Hartman, Democrat, incumbent).
The conclusion is plain, direct. A vote cast in Hartman’s district had more than twice the weight of a vote cast in McMullan’s district. If that isn’t substantial dilution, I’d like to know what is.
Gross differences in vote weight appeared throughout the state.[vi] What went so terribly wrong?
Answer: the judges’ warm body reapportionment solution -- make the house districts equal in population -- was one person, one person reapportionment, not One Person, One Vote reapportionment.
That one person, one person reapportionment, by the way, ran contrary to previous Supreme Court rulings.
In Gaffney v. Cummings (1973), the Court held that
“total population, even if absolutely accurate as to each district when counted, is nevertheless not a talismanic measure of the weight of a person’s vote…The United States census is more of an event than a process. It measures population at only a single instant in time. District populations are constantly changing, often at different rates in either direction, up or down. Substantial differentials in population growth rates are striking and well-known phenomena. So, too, if it is the weight of a person’s vote that matters, total population – even if stable and accurately taken – may not actually reflect that body of voters whose votes must be counted and weighed for the purposes of reapportionment, because ‘census persons’ are not voters [sic]. The proportion of the census population too young to vote or disqualified by alienage or nonresidence varies substantially among the States and among localities within the States.”
Inequality is especially blatant when the district populations are indisputably equal following a court order, i.e., in terms of the raw population they represented, fewer than 4,000 people in one district had the same weight as more than 8,000 in another.
Why were so few votes cast in Hartman’s district relative to McMullan’s?
The Supreme Court identified the cause: ‘census persons’ are not voters. Hartman’s district was on the Mexican and Texas borders. Many of its residents were ineligible to vote in New Mexico. But in the three judges’ order that reapportionment be made strictly on raw body counts, the eligible-ineligible distinction was lost.
Completely, totally lost.
In another decision, the Supreme Court was even more straightforward about not requiring reapportionment solely on the basis of warm bodies. In Burns v. Richardson (1966), the Court declared it never
“suggested that the states are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with Equal Protection Clause is to be measured.”
The New Mexico state legislature did not go quietly into that dark night. It appealed to the Supreme Court. Given the Burns ruling cited above, you’d think the Court would jump at the opportunity to assert itself and rebuke the slap-in-the-face delivered by the three judges. The Court did no such thing. It refused to hear the case, thereby letting the ruling stand. Why?
Remember Dred Scott. Where there is no pride, there is no shame -- some readers will conclude. I think the answer lies elsewhere. The end result produced by NOT hearing the contradictory ruling: ambiguity. The Supreme Court loves it, creates it by the trainload. The reason: in an ambiguous situation, he who is the POSITION to know has the power. And power is what the Supreme Court is all about. It has learned, a la computer tycoon, that money, full employment for lawyers and the judicial branch, and other self-serving measures are enhanced by creating problems, not solving them.[vii]
If reapportioning on the basis of raw bodies doesn’t work, what will?
There is a second, readily-apparent method for reapportioning. It is in the second half of the One Person, One Vote principle.
Conceivably, a reapportionment plan could completely ignore the census population. The plan would start with the total voter turnout in the last statewide election. Staying with New Mexico, 408,621 votes were cast in 1986.
(1) To determine the ideal house district size, divide that total turnout by the number of house districts. 408,621 divided by 70 = 5,837.
(2) To reapportion, make a list of every precinct’s total votes cast. Then put precincts together so as to form each house district as close as practicable to 5,837 votes.
The three judges commanded: make the populations equal and ignore the votes. The reapportionment method just outlined would make the votes equal and ignore the populations. Instead of the judges’ one person, one person apportionment, the second technique would be one vote, one vote apportionment.
Beyond a doubt, using only votes cast would reduce the extreme variation in turnouts across districts. The McMullan/Hartman vote disparity would instantly vanish.
The price would be too high, however. One vote, one vote apportionment would create excessive and unacceptable deviations in house district populations. Why? For the same reason one person, one person apportionment does not work: different areas have different voter turnouts. To repeat: ‘census persons’ are not voters. Children, out of state students, seasonal workers, convicted felons, foreign citizens -- all are census persons, none are voters.
Lawyers reading these words are aware that, to date, reapportionment lawsuits have focused on population inequalities. To my knowledge, no lawsuit yet has been filed over vote weight inequalities. The latter, however is an idea whose time is coming -- and quickly. In America, no gold mine will be left behind.
Some day soon, a lawyer will saunter into a courthouse, open his briefcase. There it is: the other shoe. It will drop with an almighty thud, creating tremors from the California redwoods to the New York islands. Every state in the nation is guilty of gross vote weight inequalities, and for the same reason as New Mexico. Those inequalities were created not by local ill will, but by federal court orders. A classic case, if there ever was one, of making (and taking) money by creating problems, not solving them.
What if, you ask, the courts and not the states had to pay for their mistakes? Sorry, that common sense solution is inapplicable in post-2008-2009 America. Impossible.
We have come to the end of a road. We are left holding a bag.
* * *
The One Person, One Vote principle presents a conundrum: how can you mix two different things, apples (persons) and oranges (votes)?
The best testimony to the conundrum’s enduring power is that it exists in a multitude of languages, e.g., in Latin America, “Comparar peras con manzanas.” So many different cultures indicate there is no common origin. It is a maxim that belongs to us all.
The earliest expression of the maxim is indirect. Plato’s Theaetetus, a dialogue (369-367 BC) between Socrates and Theaetetus, a mathematican:
Now in regard to sound and color, you have, in the first place, this thought about both of them, that they both exist?
And that each is different from the other and the same as itself?
And that both together are two and each separately is one?
Yes, that also.
A thing is itself, then, not something else. In the famous Law of Identity, A = A. An apple is an apple; an orange, an orange. The apples/oranges dictum follows (or seems to); the note is not off key.
Can the Law of Identity be, like the 14th amendment, misconstrued, misapplied?
You flatly say the conundrum cannot be solved. You are on solid ground; 2,000 years of existence plus multi-cultural appearances around the world support you.
I, however, say something else. With the 2008-2009 change to an oligarchy, the United States entered something far beyond anything little Alice experienced -- a world beyond another looking glass hidden in her world beyond the looking glass. In the new American wonderland without wonder, (1) people are paid to create problems, not solve them; (2) whenever the problem is not in the solution, (3) the solutions to problems are known but they cannot be implemented.
Next week: the 2,000-year-old conundrum solved.
[i] See this series Part 5 on how a slave was counted as 3/5 human. Oligarchs and other apologists for slavery and its byproduct, the electoral college, are quick to argue that the 3/5-human formula never existed. They will note that in practice here’s what happened: 3/5 of a state’s total slave population was added to the total free population to derive the state’s total population for the purpose of calculating congressional districts (and hence, the state’s electoral college votes). The 3/5 calculation, they swear, dealt with aggregate numerical quantities only; it said nothing whatsoever about the value of the life of an individual slave.
Call it what you will, gentlemen, it still remains the same. Let’s see how you feel when your group is counted as only 3/5 of another group for determining the size of a human population. I grew up in the South. There, your quaint theory -- the 3/5 human formula never existed -- was separate from practice all day long. It was that squalid, antidemocratic practice in the world where southerners lived and worked which gave rise to, among other things, the 14th amendment.
When a theory is separate from practice that means only one thing: something is wrong with the theory. In the case of the 3/5-human theory, we already knew that; let’s move on.
[ii] In 1957, a foam-at-the-mouth white racist working in a Kudzu-ensnared gas station in a Georgia hamlet -- where the major industry was two speed traps -- put it this way. “Southerners can accept Blacks as individuals, never as a group. Northerners can accept Blacks as a group, never as individuals.” That man with a third grade education nailed two varieties of racism on the head. If you think the latter type, which the Court exercises, doesn’t exist, watch how northern whites hunker down when a Black person wants to move in next door. Lace curtain palaces included.
[iii] Cities and counties must reapportion, and hence are subject to lawsuits; however, they are not where megabucks wars are fought.
[iv] Name available on request.
[v] The words in a State merit emphasizing.
Obviously, the 100 United States senators represent wildly varying populations. The biggest state, California, 37 million population, has two senators. The smallest, Wyoming, 563,626 population, also has two senators. In the federal system, states qua states are deemed fundamental, distinctive, worthy of representation -- in short, sovereign. A = A: California = California, not Wyoming. Equality of votes, therefore, is confined to within each state.
Other countries have provinces, cantons, regions, departments and other entities that play the same role as states in America. Such units often show huge disparities in population counts. As with states, each province, department, etc. is a basic, culturally-defined, sovereign given. Thus, the equal vote weight principle is not relevant across them.
Someday, perhaps, due to migration patterns and economic developments, the entire American federal system should be revisited and states redefined or even abolished, replaced by something else. Not now, however. Given the correlation of forces in the oligarchic political system, guess who would win.
[vi] If mandatory voting is instituted (see Part 4), election turnouts could increase as much as 40%. It follows that the need to include votes cast in the One Person, One Vote principle will become urgent.
[vii] For controlling the out-of-control Supreme Court, see Part 1.